Citation Nr: 0902724
Decision Date: 01/27/09 Archive Date: 02/09/09
DOCKET NO. 06-10 279 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for a left knee
condition.
2. Whether new and material evidence has been submitted to
reopen a claim for service connection for a chronic
psychiatric disability, currently assessed as bipolar
disorder.
3. Whether new and material evidence has been submitted to
reopen a claim for service connection for costochondritis,
claimed as chest/sternal pain.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
H. Seesel, Associate Counsel
INTRODUCTION
The veteran had active service from July 1988 until May 1989.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a March 2005 rating decision from
the Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia.
During the November 2008 Board hearing the veteran raised a
claim for entitlement to service connection for the right
knee. This claim has not been adjudicated and is REFERRED to
the RO for appropriate action.
In this decision the Board reopens the claims for service
connection for bipolar disorder and costochondritis, claimed
as chest/sternal pain. These issues are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. On November 19, 2008, prior to the promulgation of a
decision in the appeal, the veteran withdrew the claim
concerning whether new and material evidence had been
submitted to reopen a clam for service connection for the
left knee.
2. A September 2002 rating decision which denied service
connection for a chronic psychiatric disability, currently
assessed as bipolar disorder, and denied reopening a claim
for service connection for costochondritis, claimed as
chest/sternal pain, is final.
3. The evidence associated with the claims file subsequent
to the September 2002 rating decision relates to an
unestablished fact necessary to substantiate the claim for a
chronic psychiatric disability, currently assessed as bipolar
disorder, and raises a reasonable possibility of
substantiating the claim.
4. The evidence associated with the claims file subsequent
to the September 2002 rating decision does not relate to an
unestablished fact necessary to substantiate the claim for
costochondritis, claimed as chest/sternal pain, and raises a
reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a Substantive Appeal for
the claim concerning whether new and material evidence had
been submitted to reopen a clam for service connection for
the left knee have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5)
(West 2002); 38 C.F.R. §§ 20.202, 20.204 (2008).
2. Evidence received since the final September 2002
determination wherein the RO denied the veteran's claim of
entitlement to service connection for a chronic psychiatric
disability, currently assessed as bipolar disorder, is new
and material, and the veteran's claim for that benefit is
reopened. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105
(West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 3.159, 20.1103
(2008).
3. Evidence received since the final September 2002
determination wherein the RO denied the veteran's claim of
entitlement to service connection for costochondritis,
claimed as chest/sternal pain, is new and material, and the
veteran's claim for that benefit is reopened. 38 U.S.C.A. §§
5103, 5103A, 5104, 5107, 5108, 7105 (West 2002); 38 C.F.R. §§
3.104(a), 3.156, 3.159, 20.1103 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Withdrawal of Claims
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing or on the record at a hearing at any
time before the Board promulgates a decision. 38 C.F.R. §
20.202 (2008). Withdrawal may be made by the appellant or by
his authorized representative. 38 C.F.R. § 20.204 (2008).
In November 2008, during the Board hearing, the veteran
clearly indicated she wished to withdraw her appeal
concerning whether or not new and material evidence had been
submitted to reopen a clam for service connection for the
left knee. The veteran has met the criteria of 38 C.F.R. §
20.204 and withdrawn this appeal and there remains no
allegations of errors of fact or law for appellate
consideration. Accordingly, the Board does not have
jurisdiction to review this appeal and this claim is
dismissed.
New and Material Evidence
The veteran seeks service connection for a psychiatric
disability, currently assessed as bipolar disorder, and
costochondritis, claimed as chest/sternal pain. Claims for
service connection for sternal pain were previously
considered and denied by the RO in rating decisions dated in
July 1997 and September 2002. The veteran did not appeal the
decisions and as such, they are final. 38 U.S.C.A. § 7103(a);
38 C.F.R. § 20.1103. A claim for bipolar disorder was
previously considered and denied by the RO in a September
2002 rating decision. The veteran did not appeal the
decision and as such, the September 2002 decision represents
a final decision. 38 U.S.C.A. § 7103(a); 38 C.F.R. § 20.1103.
The submission of "new and material" evidence is a
jurisdictional prerequisite to the Board's review of such an
attempt to reopen a claim. Absent the submission of evidence
that is sufficient to reopen the claim, the Board's analysis
must cease. See Barnett v. Brown, 83 F.3d 1380, 1383
(Fed.Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171
(1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The
Board may not then proceed to review the issue of whether the
duty to assist has been fulfilled, or undertake an
examination of the merits of the claim. The Board will
therefore undertake a de novo review of the new and material
evidence issue.
Specific to requests to reopen, the claimant must be notified
of both the reopening criteria and the criteria for
establishing the underlying claim for service connection. See
Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the
notice letter provided to the appellant on September 2004
included the criteria for reopening a previously denied
claim, the criteria for establishing service connection, and
information concerning why the claim was previously denied.
Consequently, the Board finds that adequate notice has been
provided, as the appellant was informed about what evidence
is necessary to substantiate the element(s) required to
establish service connection that were found insufficient in
the previous denial. Furthermore, the Board finds the
evidence associated with the claims file is sufficient to
reopen the claim and as such a deficiency in notice, if any,
does not inure to the veteran's prejudice.
As general rule, a claim shall be reopened and reviewed if
new and material evidence is presented or secured with
respect to a claim that is final. 38 U.S.C.A. § 5108; 38
C.F.R. § 3.156. When a claimant seeks to reopen a final
decision, the first inquiry is whether the evidence obtained
after the last disallowance is "new and material." Under 38
C.F.R. § 3.156(a), new evidence means evidence not previously
submitted to agency decision makers. Material evidence means
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened and must raise a
reasonable possibility of substantiating the claim. 38 C.F.R.
§ 3.156(a).
When determining whether a claim should be reopened, the
credibility of the newly submitted evidence is presumed.
Justus v. Principi, 3 Vet. App. 510 (1992). In order for
evidence to be sufficient to reopen a previously denied
claim, it must be both new and material. If the evidence is
new, but not material, the inquiry ends and the claim cannot
be reopened. Smith v. West, 12 Vet. App. 312 (1999).
Furthermore, "material evidence" could be "some new evidence
[that] may well contribute to a more complete picture of the
circumstances surrounding the origin of the veteran's injury
or disability, even where it will not eventually convince the
Board to alter its rating decision." Hodge v. West, 155 F. 3d
1356, 1363 (Fed. Cir. 1998). If it is determined that new
and material evidence has been submitted, the claim must be
reopened. The VA may then proceed to the merits of the claim
on the basis of all of the evidence of record.
At the time of the September 2002 rating decision that denied
service connection for bipolar disorder and sternal pain, the
evidence of record consisted of service treatment records, VA
outpatient treatment records, private medical records and the
reports of VA examinations. Subsequently, additional VA
outpatient treatment records, private medical records, lay
statements and a decision from the Social Security
Administration have been associated with the claims file.
Additionally, the veteran provided testimony at a Board
hearing.
Concerning the claim for bipolar disorder, the claim was
previously denied in September 2002 as there was no evidence
of bipolar disorder during service and no evidence of a
nexus. The evidence received subsequent to the September
2002 rating decision includes a letter from a private
physician dated in November 2004 that indicated that review
of the veteran's service records suggested that the veteran
suffered considerable depressive symptoms during service and
the reports of aggravation of the depression may have been
aggravated by military service. Similarly, a private record
dated in May 2005 noted the veteran had mood swings prior to
service. After review of the service records the physician
concluded it was as likely as not that military service
aggravated the bipolar disorder. Presuming such evidence is
credible for the limited purpose of ascertaining its
materiality, this would therefore relate to the unestablished
element of a nexus between the current disability and service
which is necessary to substantiate the veteran's claim. See
Kent v. Nicholson, 20 Vet. App. 1, 10 (2006)(finding that
"the question of what constitutes material evidence to
reopen a claim for service connection depends on the basis on
which the prior claim was denied").
Presumed credible, the additional evidence received since the
September 2002 rating decision relates to an unestablished
fact necessary to substantiate the claim, and raises a
reasonable possibility of substantiating the claim.
Accordingly, the Board finds that the claim for service
connection for a psychiatric disability, currently assessed
as bipolar disorder, is reopened.
Concerning the claim for service connection for sternal pain,
the evidence submitted subsequent to the September 2002
rating decision is new, in that it was not previously of
record. The newly submitted evidence is also material. The
claim for sternal pain was denied in the September 2002
rating decision as the veteran had not provided new and
material evidence. The claim was initially denied in a July
1997 rating decision as there was no evidence of a nexus
between the sternal pain and service or evidence of
continuity of pain. The evidence received subsequent to the
September 2002 rating decision includes a June 2005 statement
from a VA physician which noted the veteran treated for
costochondritis and recurrent episodes of chest pain. The
physician noted this condition started in the military from
lifting heavy packs. The physician further noted she
reviewed the veteran's military records that indicated these
conditions started while the veteran was on active duty. In
other words, the evidence includes a record which suggests a
relationship between the sternum condition and service. See
Kent v. Nicholson, 20 Vet. App. 1, 10 (2006)(finding that
"the question of what constitutes material evidence to
reopen a claim for service connection depends on the basis on
which the prior claim was denied"). Presuming such evidence
is credible for the limited purpose of ascertaining its
materiality, this would therefore relate to the unestablished
element of a nexus between the current disability and service
which is necessary to substantiate the veteran's claim.
Presumed credible, the additional evidence received since the
September 2002 rating decision relates to an unestablished
fact necessary to substantiate the claim, and raises a
reasonable possibility of substantiating the claim.
Accordingly, the Board finds that the claim for service
connection for costochondritis, claimed as chest/sternal
pain, is reopened.
ORDER
The appeal concerning whether new and material evidence had
been submitted to reopen a claim for service connection for a
left knee disability is dismissed.
New and material evidence having been submitted, the claim
for service connection for a chronic psychiatric disability,
currently assessed as bipolar disorder, is reopened. To this
extent and to this extent only, the appeal is granted.
New and material evidence having been submitted, the claim
for service connection for costochondritis, claimed as
chest/sternal pain is reopened. To this extent and to this
extent only, the appeal is granted.
REMAND
Having reopened the claims concerning service connection for
a chronic psychiatric disability, currently assessed as
bipolar disorder, and costochondritis, claimed as
chest/sternal pain, the Board finds that further development
is necessary.
The record reflects the Social Security Administration
granted disability benefits to the veteran in a September
2008 decision. These benefits are based in part on the
veteran's bipolar disorder and other psychiatric
disabilities. However, complete copies of the medical
records upon which any disability decision was based, as well
as any agency decision with the associated List of Exhibits,
have not been made part of the claims file. VA's duty to
assist extends to obtaining records from the Social Security
Administration. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159(c)(2).
Additionally, under the duty to assist, a medical examination
or medical opinion is considered necessary if the information
and evidence of record does not contain sufficient competent
medical evidence to decide the claim, but (1) contains
competent medical evidence of a currently diagnosed
disability or persistent or recurrent symptoms of a
disability; (2) establishes that the veteran suffered an
event, injury, or disease in service; and (3) indicates that
the claimed disability or symptoms may be associated with an
established event, injury or disease in service or with
another service-connected disability. 38 C.F.R. §
3.159(c)(4). See Charles v. Principi, 16 Vet. App. 370 (2002)
(Observing that under 38 U.S.C.A. § 5103A(d)(2), VA was to
provide a medical examination as "necessary to make a
decision on a claim, where the evidence of record, taking
into consideration all information and lay or medical
evidence [including statements of the claimant]; contains
competent evidence that the claimant has a current
disability, or persistent or recurrent symptoms of
disability; and indicates that the disability or symptoms may
be associated with the claimant's active military, naval, or
air service; but does not contain sufficient medical evidence
for the [VA] to make a decision on the claim.").
In the present case, the veteran has current psychiatric
diagnoses, symptoms during service and an opinion that
service may have aggravated the psychiatric condition.
Significantly, the Board notes that the symptoms during
service were characterized primarily as a personality
disorder but were also noted as suicidal gesture versus
depression and differential diagnoses included rule out
depression, rule out adjustment disorder and rule out
dysthymic disorder.
In the field of mental disorders, personality disorders which
are characterized by developmental defects or pathological
trends in the personality structure manifested by a lifelong
pattern of action or behavior will be accepted as showing
preservice origin. 38 C.F.R. § 3.303(c). Chronic
psychoneurosis of long duration and other psychiatric
symptomatology shown to exist prior to service with the same
manifestations during service will also be accepted as
showing preservice origin. Furthermore, personality
disorders as such are not diseases or injuries within the
meaning of applicable legislation providing for compensation
benefits. 38 C.F.R. § 3.303(c). While personality disorders
are not diseases or injuries within the meaning of applicable
legislation providing for compensation benefits. 38 C.F.R. §
3.303(c), the Board notes that service connection may still
be warranted where a congenital or developmental defect is
subject to a superimposed injury or disease during service.
VAOPGCPREC 82-90 (July 18, 1990).
Given the above, without further clarification, the Board is
without medical expertise to ascertain whether any current
bipolar disorder is related to service or is the result of
aggravation of the personality disorder noted during service.
Therefore, the Board finds that a VA examination and medical
opinion are necessary for the purpose of determining the
nature and etiology of any and all psychiatric disabilities
that may be present and whether any is the continuation of a
disease which had its onset in service or the result of a
superimposed injury on the personality disorder, shown in
service.
Similarly, concerning the costochondritis, the evidence
includes current diagnoses, a complaint during service and a
statement, without a detailed rationale, which generally
links the condition to an injury during service. Therefore,
the Board is of the opinion that the veteran has met the
criteria of 38 C.F.R. § 3.159 and a VA examination should be
obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC shall attempt to obtain
additional documents concerning the
veteran's Social Security Administration
(SSA) benefits; specifically, any List of
Exhibits associated with the SSA's
September 30, 2008 decision, including
copies of all of the medical records
concerning the veteran's claims on appeal.
2. The veteran should be afforded an
appropriate VA examination to ascertain
the nature and etiology of any psychiatric
disability, including bipolar disorder,
that may be present. Any and all
indicated evaluations, studies and tests
deemed necessary by the examiner should be
accomplished. The examiner is requested
to review all pertinent records associated
with the claims file, and following this
review and the examination render an
opinion as to the following:
a) Whether it is at least as likely as not
(a 50% probability or more) that any
diagnosed psychiatric disability,
including bipolar disorder, is related to
any event or incident in service.
b) Whether it is at least as likely as not
(a 50% probability or more) that any
currently diagnosed psychiatric disability
is the result of a superimposed injury on
the personality disorder, shown in
service.
A clear rationale for all opinions would
be helpful and a discussion of the facts
and medical principles involved would be
of considerable assistance to the Board.
3. The veteran should also be afforded an
appropriate VA examination to ascertain
the nature and etiology of any
costochondritis or sternum disability that
may be present. Any and all indicated
evaluations, studies and tests deemed
necessary by the examiner should be
accomplished. The examiner is requested
to review all pertinent records associated
with the claims file, and following this
review and the examination render an
opinion as to the following:
Whether it is at least as likely as not (a
50% probability or more) that any
diagnosed costochondritis or sternum
disability is related to any event or
incident in service.
A clear rationale for all opinions would
be helpful and a discussion of the facts
and medical principles involved would be
of considerable assistance to the Board.
4. When the development requested has
been completed, the claim should again be
reviewed by the RO on the basis of the
additional evidence. If the benefits
sought are not granted, the veteran and
his representative should be furnished a
Supplemental Statement of the Case, and be
afforded a reasonable opportunity to
respond.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs